ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20170003566


APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application For the Review of Discharge From the Armed Forces of the United States)
* Military personnel records

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. The applicant states, he was given the Chapter 10 discharge (For the Good of the Service), but believes he should receive an upgrade.  He was pending court-martial.  He would have been able to receive his honorable discharge if the court-martial found in his favor.

3.  A review of the applicant’s service record shows: 

a.  He enlisted in the Regular Army (RA) for 6 years on 23 July 1979.  He reenlisted
for 3 years on 23 February 1983, and for 6 years on 23 November 1985.

	b.  A military police report dated 28 January 1987 shows he was reported absent without leave (AWOL) on 5 January 1987 and dropped from the rolls (DFR) on 4 February 1987 and was arrested on 15 May 1987 by civil authorities and placed in jail on civil charges.  He was released to military police on 22 May 1987 and transported to the AWOL section on Fort Lewis, WA.

c.  His DA Form(s) 4187 (Personnel Action) show:

* 5 January 1987 – AWOL
* 4 February 1987 – DFR
* 22 May 1987 – Returned to military control
* 26 May 1987 – Present for duty

   d.  DA Form 458 (Charge Sheet), dated 2 June 1987, shows court-martial charges were preferred against him for one specification of AWOL from 5 January to 22 May 1987. 

   e.  On 2 June 1987, the applicant consulted with legal counsel.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  In his request for discharge, he acknowledged his understanding that:

* by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge
* he acknowledged he understood that if his discharge request was accepted he would be deprived of many or all Army benefits, he would be reduced to the grade of private/E-1, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he was advised he could submit any statements he desired in his own behalf
* he elected not to submit any statements in his behalf

   f.  The subsequent chain of command approval was completed on 8 September 1987.

   g.  On 10 September 1987, the applicant’s separation was directed for the good of the service with a discharge certificate under other than honorable conditions, and immediate reduction of the applicant to the lowest enlisted grade.

	h.  Orders 178-965, published on 18 September 1987, show the applicant was reduced in rank from staff sergeant/E-6 to private/E-1 effective 10 September 1987.

	i.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 October 1987 under authority of AR 635-200, Chapter 10 for good of the service in lieu of court-martial with an under other than honorable conditions character of service.  He completed 7 years, 9 months, 27 days of active service during the period, and had lost time from 5 January 1987 to 21 May 1987.  He is awarded or authorized:

* Army Commendation Medal (1st Oak Leaf Cluster) 
* Army Achievement Medal (1st Oak Leaf Cluster)
* Army Good Conduct Medal
* Non-Commissioned Officer Professional Development Ribbon (2)
* Army Service Ribbon
* Overseas Service Ribbon
* Rifle Marksman Qualification Badge
* Grenade Expert Qualification Badge

4.  The applicant previously requested the Army Discharge Review Board (ADRB) to have his under other than honorable discharge changed to honorable.  After consideration of his military records and all other available evidence, the ADRB determined the applicant was properly and equitably discharged, and denied his request for the change on 4 June 1992. 

5.  By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 10, for the commission of an offense or offenses, the punishment for any of which, under the UCMJ and Manual for Courts-Martial includes a bad conduct or dishonorable discharge.  An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the length of the AWOL offense and a lack of mitigating reasons provided by the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.

However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214.  For that reason, the Board recommended making that change to more accurately depict his military service.




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 23 July 1979 until 22 February 1983.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.










REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable, and may be issued for misconduct, homosexuality, security reasons, or for the good of the service in specific circumstances.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

5.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).

ABCMR Record of Proceedings (cont)	 AR20170003566


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